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Car Accident Injury Article

Explanation and advice


 

Overview: There are two parts to the motor vehicle accident claim system.

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Car Accident Lawyer Whitby

Are you a victim of a car accident injury in Whitby, Osahwa or Pickering, Ajax Ontario? You are likely entitled to benefits and potentially a money award or settlement as well. Car accident benefits can also be available to those injuries from ATV’s, snowmobiles, bicycles and motorcycles.  Our injury lawyers will make your best interests their top priority.

Many people describe Ontario’s car accident compensation system as “no fault”. This is only partly true.

Ontario’s car accident compensation system does offer no-fault benefits (often referred to as accident benefits) which are available to you in most cases even if a car accident was your fault. These benefits can include compensation for certain out of pocket expenses (such as repairs to your vehicle, the cost of a rental vehicle, damaged clothing, personal effects, and contents in your car), reasonable and necessary treatment expenses, limited loss of income, etc. If, because of your injuries, you require help with your care giving activities (ie: for children or elderly parents) or your housekeeping activities you may be entitled to hire a professional or a friend or relative to assist you at the insurers expense.

You may also be entitled to commence a lawsuit for additional losses if the accident was not your fault (or if it was not entirely your fault). Some lawyers and other people will tell you that you are unable to commence a lawsuit if you have sustained a “soft tissue” injury. This is incorrect. Soft tissue injuries can be devastating and many lawsuits are commenced in these sorts of cases.

Questions may arise early in the process, such as what questions should you answer that the insurer asks you? Is the insurance company allowed to speak to your doctor? Is the insurance company allowed to demand your pre-accident medical records? Do you have to speak to the insurer or adjuster representing the other driver? A knowledgeable lawyer should be able to guide you through these issues and advise you about your entitlement to certain benefits.

It may also be advisable for you to commence a lawsuit. Lawsuits are generally commenced to obtain compensation for things that are not covered by accident benefits (ie: pain and suffering, etc.). There are numerous disclosure obligations and requirements to start a lawsuit. There is also a time-limit for commencing a lawsuit and it is advisable to speak to a lawyer immediately if you are considering a lawsuit. There are a number of restrictions that have been placed on an injured person’s right to sue in Ontario.  Lawyers are available through this website  for free consultations – contact a whitby car accident lawyer now:

Contact us today for a free consultation.

Car Accident Lawyer Whitby, Oshawa, Ajax specializing in car accident injury insurance claim pay out, lawsuit, settlement and personal injury. Serving Southern Ontario.

  • Ontario’s Car Accident Injury terms and saying

    In this short article, we have tried to start setting out a list of terms with a brief description so that you have a guide to assist in starting to understand some of the terms. Please remember that this list and description is not exhaustive and by no means is this in any way legal advice. You should consult with a lawyer about your rights and entitlement and a free consultation with a lawyer can be arranged by clicking here.

    Terms

    (1) MVA = motor vehicle accident

    (2) SABS = statutory accident benefits. These are the no-fault benefits that you can access, often through your own insurance company.

    (3) IRB’s = income replacement benefits. These are benefits that you may be eligible to apply for from your SABS/No-fault insurance company to compensate you for time off of work.

    (4) Tort = Claim against an at-fault party in an accident. This is usually pursued by way of a lawsuit against the party or parties that were responsible for the accident. You may be eligible to claim for pain and suffering, income losses, housekeeping costs etc. etc.

    (5) BI = Bodily Injury. This term is often used to describe the tort/fault portion of the lawsuit. You may also hear the term used when an insurance adjuster is described as a “BI adjuster” as opposed to a SABS/no-fault adjuster or property damage adjuster.

    (6) Deductible = In many car accident cases, a deductible is subtracted from amounts that an injured person is awarded for pain and suffering in a lawsuit (often $30,000). For instance, if you reached a settlement or were awarded $75,000 for pain and suffering, you might only receive $45,000 after application of the deductible. A deductible may also apply to family members who advance claims under the family law act.

    (7) Threshold = Ontario’s Insurance Act contains a threshold that many injury victims must meet in order to be able to make a claim or start a lawsuit for pain and suffering. If someone does not meet the “threshold” then they may well not be entitled to claim for pain and suffering. The threshold has been subject to interpretation by statute, judicial authority and academic writing.

    (8) Uninsured/underinsured coverage = If you are the injured victim in a car accident caused by an uninsured or inadequately insured vehicle you may well have access to coverage from your own insurance company or from the motor vehicle accident claims fund (a special fund in Ontario), above and beyond the amounts available through the uninsured/underinsured vehicle.  Similarly, there may also be coverage available if the at-fault vehicle was unidentified.

    Your uninsured/underinsured coverage can be particularly important if you are injured in a car accident in the United States.  The minimum limits in some U.S. states can be quite low, and Ontario injury lawyers have seen many cases where the uninsured/underinsured coverage provided the bulk of the recovery for the injured victim.

    Further terms will be added as the list grows.

    Please feel free to request a free, no obligation, consultation from an experienced personal injury lawyer.

    Contact us today for a free lawyer consultation.

  • Ten (10) Things That You Should Do After A Car Accident

    Immediately after a car accident people are shaken up, scared, perhaps in shock and they are not thinking rationally. In some cases people fail to document important information at the scene and afterwards and fail to take steps that will protect their interests going forward.

    Below, please find 10 helpful things that you can do after a car accident, which may assist you if you are required to launch a lawsuit or take other steps to advance your interests in the future.

    1. Obtain the other drivers name, license, license plate and insurance information. 

    2. Obtain names and contact information for any witnesses. 

    3. Take pictures of the damage to the vehicle 

    4. Take pictures of any visible physical injuries 

    5. Notify the police and your insurance company and file reports 

    6. Keep written notes of how the accident happened and any pains that you are having. 

    7. Keep notes of any discussions that you have about how the accident happened. 

    8. Keep a record of names of persons that you speak with. 

    9. When you speak with an insurance adjuster, confirm the substance of the discussion by e-mail or letter. 

    10. If you are injured, speak to a lawyer right away to find out your options and important information. Ideally, you could speak to a lawyer before providing a statement to any insurance adjusters.

    These are some of the steps that many people recommend after a car accident. They may or may not be applicable to your specific situation. It is best to contact a lawyer to discuss your specific situation and to determine what steps, if any, are appropriate in your particular situation. It is generally a good idea to take steps to contact a lawyer right away to ensure that limitation and notice periods do not expire before you have a chance to take any necessary steps.

  • New changes to the accident benefits – no-fault – car insurance system

    On November 2, 2009, the McGuinty government announced a package of proposed reforms to the accident benefit (no-fault) car insurance system in Ontario. The proposed changes are expected to be implemented by the summer of 2010.

    The proposed changes will considerably reduce the standard benefits available to most people who have been injured in car accidents. Ontarians will still have the option of buying extra coverage when they purchase their auto insurance.

    While catastrophically injured patients will be affected by the changes, patients who are deemed to be “non-catastrophic” will face the most notable reductions in benefits.

    Under the current legislation, there are often disputes about whether the injured victim (patient) is “catastrophically impaired”.  The outcome of the disputes are important because of the significantly increased benefits available to catastrophically injured persons.  The number of disputes may well increase as non-catastrophic benefits are reduced.  While some “catastrophic impairments” are easy to identify (ie: quadriplegia), there are many that are not as easy (ie: someone who has sustained a 55% impairment of their whole person).  It should be noted that the proposed changes include an, as of yet undefined, amendment to the definition of what “catastrophic” will mean.

    While not all of the changes have been identified yet, some of the significant changes that have been announced for non-catastrophic claimants are:

    *Housekeeping BenefitsEliminated completely

    *Caregiver BenefitsEliminated completely

    *Attendant Care BenefitsCut in half to $36,000 maximum

    *Interest rate penalty to insurers for failure to pay timely benefitsCut in half

    *Medical/Rehabilitation/Assessment benefits: *Cut by more than half, leaving $50,000 for all medical/rehabilitation and assessment needs. 

    *“Minor Injury” Medical/Rehabilitation/Assessment benefitsrestricted to $3,500.  It remains to be seen how “minor injuries” will be defined

    The current system for accident benefits provides $100,000 for non-catastrophic medical and rehabilitation needs, plus reasonable amounts for assessment costs requested by the injured person.  It also allows injured persons to obtain “rebuttal reports” to reply to insurance company reports that they feel are unfair.  Funding for rebuttal reports will be completely eliminated under the proposed changes.

    Although $50,000 may be more than enough to satisfy the medical, rehabilitation and assessment needs of many car accident victims, there will likely be other cases where the available benefits are used up before the patient’s needs are satisfied.  Further, because some patients are not deemed catastrophic until quite some time after the accident, there may well be patients whose benefits expire before they reach the point where they can even meet the definition of being catastrophic.

    While catastrophically injured persons will continue to have access to one million dollars for medical and rehabilitation benefits, the cost of assessments will now be deducted from that amount.

    The assessment funding changes are significant because of the cost of assessments, the long wait to obtain specialist appointments through OHIP and the frequent need to reply to reports obtained by insurance companies.  There will have to be a calculated balance between the need for no-fault assessment funding and the need to fund treatment.

    If a patient has a viable lawsuit against the persons who caused the accident, the assessments could potentially be funded by the claimant’s lawyer and claimed for in the lawsuit, freeing up the full no-fault medical and rehabilitation limits for treatment.

    The proposed changes will place increased importance on the availability of a lawsuit against the people who caused the accident. If patient needs exceed the available no-fault benefits, patients can, in many circumstances, still pursue compensation as part of a lawsuit against the people who caused the accident. However, patients will have to wait until the successful completion of a lawsuit to get the money necessary to pay for their treatment or assistance with tasks of daily living. This may lead to an increased number of patients who undergo treatment, or receive assistance, on the promise to pay for it upon settlement or resolution of their lawsuit.

  • Injured by an Unidentified/Uninsured Car – What Do I Do?

    A car accident can be a traumatic event. However, when the at-fault driver speeds off after the accident, or you find out that the driver is not insured, that can make you even more nervous and confused about your rights.

    People often wonder whether they have a right to any accident benefits and whether they have a right to recover for pain and suffering, future losses and other damages that are often claimed in lawsuits. In the majority of cases, the fact that the other driver is unidentified or the fact that the other driver does not have insurance, probably will not stand in the way of your entitlement. There is “uninsured and unidentified” coverage available to many injured persons under their own car insurance policies. Many people do not even know that they have this coverage available to them.

    If insurance is not available there may still be a way to claim through a government system known as the motor vehicle accident claims fund. It is important to investigate the availability of insurance early.

    However, in motor vehicle accident cases, notice and time limits do apply. If you have been injured and have questions it is important that you speak to a lawyer right away who can provide a legal analysis of your rights and provide you with advice about the steps that you have to take to protect your rights.

  • Durham Region And Car Accidents

    Weather conditions in the Durham Ontario area (including Ajax, Whitby, and Oshawa) can include snow, rain, ice, and other conditions that can contribute to accidents. Driving can be more difficult and inattention can lead to much worse results than would otherwise be the case in better weather. In 2008 an insurance website estimated that 11.68% of people in Whitby have had car accidents in the past 6 years. An article in the Toronto Star on July 16, 2007 noted that you have a greater chance of bring involved in a car accident on Highway 401, between Whites Road in Courtice and Courtice Road east of Oshawa, than any other highway location in Ontario (according to OPP data).

    Where accidents happen relatively often it is important to know your rights in the event that you are injured in a car accident, slip and fall or some other accident. Car accident injury victims have the ability to access benefits that would probably not be available if you were injured in some other way (ie: a slip and fall accident). There may be available income replacement benefits, housekeeping assistance, medical and rehabilitation benefits, and other types of benefits. Those benefits may well be available to you even if you were at fault for the accident. However, with a relatively rich benefits system comes a more restricted ability to claim in a lawsuit for pain and suffering and other damages. There is a threshold that many cases have to meet to be able to claim and a deductible that may apply to pain and suffering claims.

    In addition to the precise injury sustained, the effect on the person’s life is a very important consideration. It is important to speak to an accident and injury lawyer to determine whether you have a viable claim.

    Contact us today to for a free consultation.

  • Ontario Car Accident? Who is at fault?

    Fault for a car accident can mean different things, including any of the following:

    (1)  who the police officer gave a ticket to under the Highway Traffic Act, or

    (2)  who is at fault in a civil lawsuit for personal injury, or

    (3)  who the Insurance Companies deem to be at fault in terms of insurance record and vehicle damage/deductible.

    This article will discuss the third category.  I have addressed the other two categories in previous articles.  This article is simply for general discussion and does not represent formal legal advice.  You should consult the legislation or a lawyer for your particular situation.

    It should be noted that a decision under category 3 does not really impact on categories 1 and 2 and probably wouldn’t even be admissible into evidence in a personal injury lawsuit.

    After a car accident, the people involved will usually call their own insurance companies to report the accident.  The first question that most people have is who the insurance company will say is at fault for the accident.

    Some people assume that an insurance adjuster just uses their own judgment and makes a decision about who is at fault.  However, insurance adjusters refer to something called the “Fault Determination Rules” when deciding who is at fault for an accident.  The rules look at different accident scenarios and provide guidance.  As of November 2013 when this article was written, the rules can be taken from the legislation and roughly be summarized as follows:

    Rules for Automobiles Travelling in the Same Direction and Lane

    This section applies when automobile “A” is struck from the rear by automobile “B”, and both automobiles are travelling in the same direction and in the same lane.

    If automobile “A” is stopped or is in forward motion, the driver of automobile “A” is not at fault and the driver of automobile “B” is 100 per cent at fault for the incident.

    Diagram

    Car Accident 1

    If automobile “A” is turning, either to the right or to the left, in order to enter a side road, private road or driveway, the driver of automobile “A” is not at fault and the driver of automobile “B” is 100 per cent at fault for the incident.

    Diagram

    Car Accident 2

    If automobile “A” is in forward motion and is entering a parking place on either the right or the left side of the road, the driver of automobile “A” is not at fault and the driver of automobile “B” is 100 per cent at fault for the incident.

    Diagram

    Car Accident 3

    This section applies when automobile “A” collides with automobile “B” while automobile “B” is entering a road from a parking place, private road or driveway.

    If the incident occurs when automobile “B” is leaving a parking place and automobile “A” is passing the parking place, the driver of automobile “A” is not at fault and the driver of automobile “B” is 100 per cent at fault for the incident.

    Diagram

    Car Accident 4

    If the incident occurs when automobile “B” is entering a road from a private road or a driveway and automobile “A” is passing the private road or driveway and, if there are no traffic signals or signs, the driver of automobile “A” is not at fault and the driver of automobile “B” is 100 per cent at fault for the incident.

    Diagram

    Car Accident 5

    If automobile “A” collides with automobile “B” on a controlled access road while automobile “B” is entering the road from an entrance lane, the driver of automobile “A” is not at fault and the driver of automobile “B” is 100 per cent at fault for the incident.

    Diagram

    Car Accident 6

    Chain Reaction Collisions

    In an incident involving three or more automobiles that are travelling in the same direction and in the same lane (a “chain reaction”)

    -The degree of fault for each collision between two automobiles involved in the chain reaction is determined without reference to any related collisions involving either of the automobiles and another automobile.

    -If all automobiles involved in the incident are in motion and automobile “A” is the leading vehicle, automobile “B” is second and automobile “C” is the third vehicle,

    -in the collision between automobiles “A” and “B”, the driver of automobile “A” is not at fault and the driver of automobile “B” is 50 per cent at fault for the incident;

    -in the collision between automobiles “B” and “C”, the driver of automobile “B” is not at fault and the driver of automobile “C” is 100 per cent at fault for the incident.

    Diagram

    Car Accident 7

    -If only automobile “C” is in motion when the incident occurs,

    - in the collision between automobiles “A” and “B”, neither driver is at fault for the incident; and

    - in the collision between automobiles “B” and “C”, the driver of automobile “B” is not at fault and the driver of automobile “C” is 100 per cent at fault for the incident.

    Diagram

    Car Accident 8

    Rules for Automobiles Travelling in the Same Direction in Adjacent Lane

    This section applies when automobile “A” collides with automobile “B”, and both automobiles are travelling in the same direction and in adjacent lanes.

    If neither automobile “A” nor automobile “B” changes lanes, and both automobiles are on or over the centre line when the incident (a “sideswipe”) occurs, the driver of each automobile is 50 per cent at fault for the incident.

    Diagram

    Car Accident 9

    If the location on the road of automobiles “A” and “B” when the incident (a “sideswipe”) occurs cannot be determined, the driver of each automobile is 50 per cent at fault for the incident.

    Diagram

    Car Accident 10

    (4) If the incident occurs when automobile “B” is changing lanes, the driver of automobile “A” is not at fault and the driver of automobile “B” is 100 per cent at fault for the incident.

    Diagram

    Car Accident 11

    (5) If the incident occurs when automobile “A” is turning left at an intersection and automobile “B” is overtaking automobile “A” to pass it, the driver of automobile “A” is 25 per cent at fault and the driver of automobile “B” is 75 per cent at fault for the incident.

    Diagram

    Car Accident 12

    (6) If the incident occurs when automobile “A” is turning left at a private road or a driveway and automobile “B” is overtaking automobile “A” to pass it, the driver of each automobile is 50 per cent at fault for the incident.

    Diagram

    Car Accident 13

    (7) If the incident occurs when automobile “A” is turning left at a private road or a driveway and automobile “B” is passing one or more automobiles stopped behind automobile “A”, the driver of automobile “A” is not at fault and the driver of automobile “B” is 100 per cent at fault for the incident.

    Diagram

    Car Accident 14

    This section applies with respect to an incident involving three or more automobiles that are travelling in the same direction and in adjacent lanes (a “pile-up”).

    - For each collision between two automobiles involved in the pile-up, the driver of each automobile is 50 per cent at fault for the incident.

    Diagram

    Car Accident 15

    Rules for Automobiles Travelling in Opposite Directions

    - This section applies when automobile “A” collides with automobile “B”, and the automobiles are travelling in opposite directions and in adjacent lanes.

    -If neither automobile “A” nor automobile “B” changes lanes and both automobiles are on or over the centre lane when the incident (a “sideswipe”) occurs, the driver of each automobile is 50 per cent at fault for the incident.

    Diagram

    Car Accident 16

    -If the location on the road of automobiles “A” and “B” when the incident (a “sideswipe”) occurs cannot be determined, the driver of each automobile is 50 per cent at fault for the incident.

    Diagram

    Car Accident 17

    - If automobile “B” is over the centre line of the road when the incident occurs, the driver of automobile “A” is not at fault and the driver of automobile “B” is 100 per cent at fault for the incident.

    Diagram

    Car Accident 18

    -If automobile “B” turns left into the path of automobile “A”, the driver of automobile “A” is not at fault and the driver of automobile “B” is 100 per cent at fault for the incident.

    Diagram

    Car Accident 19

    - If automobile “B” is leaving a parking place or is entering the road from a private road or driveway, and if automobile “A” is overtaking to pass another automobile when the incident occurs, the driver of automobile “A” is not at fault and the driver of automobile “B” is 100 per cent at fault for the incident.

    Diagram

    Car Accident 20

    Rules for Automobiles in an Intersection

    - This section applies with respect to an incident that occurs at an intersection that does not have traffic signals or traffic signs.

    - If automobile “A” enters the intersection before automobile “B”, the driver of automobile “A” is not at fault and the driver of automobile “B” is 100 per cent at fault for the incident.

    - If automobiles “A” and “B” enter the intersection at the same time and automobile “A” is to the right of automobile “B” when in the intersection, the driver of automobile “A” is not at fault and the driver of automobile “B” is 100 per cent at fault for the incident.

    - If it cannot be established whether automobile “A” or “B” entered the intersection first, the driver of each automobile shall be deemed to be 50 per cent at fault for the incident.

    - This section applies with respect to an incident that occurs at an intersection with traffic signs.

    - If the incident occurs when the driver of automobile “B” fails to obey a stop sign, yield sign or a similar sign or flares or other signals on the ground, the driver of automobile “A” is not at fault and the driver of automobile “B” is 100 per cent at fault for the incident.

    - If the driver of each automobile fails to obey a stop sign, the driver of each automobile is 50 per cent at fault for the incident.

    - If it cannot be established who failed to obey a stop sign, the driver of each automobile shall be deemed to be 50 per cent at fault for the incident.

    - If, at an all-way stop intersection, automobile “A” arrives at the intersection first and stops, the driver of automobile “A” is not at fault and the driver of automobile “B” is 100 per cent at fault for the incident.

    - If, at an all-way stop intersection, both automobiles arrive at the intersection at the same time and stop, with automobile “A” to the right of automobile “B”, the driver of automobile “A” is not at fault and the driver of automobile “B” is 100 per cent at fault for the incident.

    -If it cannot be established who arrived at the all-way stop intersection first, the driver of each automobile shall be deemed to be 50 per cent at fault for the incident.

    - This section applies with respect to an incident that occurs at an intersection with traffic signals.

    - If the driver of automobile “B” fails to obey a traffic signal, the driver of automobile “A” is not at fault and the driver of automobile “B” is 100 per cent at fault for the incident.

    - If it cannot be established whether the driver of either automobile failed to obey a traffic signal, the driver of each automobile shall be deemed to be 50 per cent at fault for the incident.

    - If the traffic signals at the intersection are inoperative, the degree of fault of the drivers shall be determined as if the intersection were an all-way stop intersection.

    Rules for Automobiles in Parking Lots

    - This section applies with respect to incidents in parking lots.

    - The degree of fault of a driver involved in an incident on a thoroughfare shall be determined in accordance with this Regulation as if the thoroughfare were a road.

    -If automobile “A” is leaving a feeder lane and fails to yield the right of way to automobile “B” on a thoroughfare, the driver of automobile “A” is 100 per cent at fault and the driver of automobile “B” is not at fault for the incident.

    - If automobile “A” is leaving a parking space and fails to yield the right of way to automobile “B” on a feeder lane or a thoroughfare, the driver of automobile “A” is 100 per cent at fault and the driver of automobile “B” is not at fault for the incident.

    - In this section,

    “feeder lane” means a road in a parking lot other than a thoroughfare;

    “thoroughfare” means a main road for passage into, through or out of a parking lot.

    Rules for Other Circumstances

    - If automobile “A” is parked when it is struck by automobile “B”, the driver of automobile “A” is not at fault and the driver of automobile “B” is 100 per cent at fault for the incident.

    -If automobile “A” is illegally parked, stopped or standing when it is struck by automobile “B” and if the incident occurs outside a city, town or village, the driver of automobile “A” is 100 per cent at fault and the driver of automobile “B” is not at fault for the incident.

    - The driver of automobile “A” is 100 per cent at fault and the driver of automobile “B” is not at fault for an incident in which automobile “A” collides with automobile “B” when the driver of automobile “A” fails to obey,

    (a) a police officer’s direction;

    (b) a do not enter sign;

    (c) a prohibited passing sign; or

    (d) a prohibited turn sign.

    - The driver of automobile “A” is 100 per cent at fault and the driver of automobile “B” is not at fault for an incident that occurs,

    (a) when automobile “A” is backing up;

    (b) when automobile “A” is making a U-turn; or

    (c) when the driver of, or a passenger in, automobile “A” opens the automobile door or leaves the door open.

    Rules When a Driver is Charged with a Driving Offence

    - For the purposes of this Regulation, a driver is considered to be charged with a driving offence,

    (a) if, as a result of the incident, the driver is charged with operating the automobile while his or her ability to operate the automobile was impaired by alcohol or a drug;

    (b) if, as a result of the incident, the driver is charged with driving while his or her blood alcohol level exceeded the limits permitted by law;

    (c) if, as a result of the incident, the driver is charged with an indictable offence related to the operation of the automobile;

    (d) if the driver, as a result of the incident, is asked to provide a breath sample and he or she is charged with failing or refusing to provide the sample;

    (e) if, as a result of the incident, the driver is charged with exceeding the speed limit by sixteen or more kilometres per hour.

    (2) The degree of fault of the insured shall be determined in accordance with the ordinary rules of law, and not in accordance with these rules,

    (a) if the driver of automobile “A” involved in the incident is charged with a driving offence; and

    (b) if the driver of automobile “B” is wholly or partly at fault, as otherwise determined under these rules, for the incident.

  • Information About No-Fault Car Accident Benefits.

    *This article is not legal advice. It is for informational purposes only and represents general information as of February 2008. The author makes no representations or warranties about the correctness or accuracy of the information. Please immediately contact a lawyer to discuss your specific situation.

    1. I was injured in a car accident. Am I entitled to compensation?

    In addition to the possibility of a lawsuit to recover a money award or settlement for injuries, pain and suffering and other losses, Ontario’s government requires automobile insurers to provide certain mandatory benefits to most people who are injured or killed in car accidents. These benefits are called “statutory accident benefits”. The statutory accident benefits system operates on a “no-fault” basis. This means that, subject to some limited restrictions, you may be entitled to compensation even if you are the one that caused the accident.

    As an injured party, you may well be entitled to receive benefits regardless of whether you were a driver, passenger, bicyclist or pedestrian. You, as well as your family members and dependants, can often receive benefits even if you did not have car insurance at the time of the accident.

    There are often disputes about what benefits you are entitled to and what insurance assessments you are required to attend. It is often a good idea to consult with a personal injury lawyer to determine what you are entitled to and what steps you need to take to protect your interests.

    2. What kind of benefits can I receive?

    Income Replacement Benefits – these benefits are designed to reimburse you for some of the money you lose as a result of being unable to work due to an injury suffered in a car accident. Benefits are not payable for the first week and you must meet a disability test to qualify for the benefits. The disability test becomes more difficult to meet after more than two years have passed since the accident.

    You can receive income replacement benefits whether you are an employee or a self-employed individual. The maximum that you can receive is generally $400 per week, unless other optional increased benefits are purchased.

    If you are self-employed, your income calculation will be more complicated and insurers often hire accountants to assist them with these calculations.

    Non-earner Benefits – you may receive these benefits if you are 16 years of age or older and have suffered a complete inability to carry on a normal life as a result of the accident within 104 weeks after the accident. A lawyer can assist in explaining what “complete inability to carry on a normal life” means and how that term has been interpreted by the cases. The benefits are only available to certain classes of people, ie: unemployed but enrolled in school on a full-time basis, or have completed your education less than one year before the accident and not be employed in a job that reflects your education and training.

    The amount of the non-earner benefit is generally $185 per week, although nothing will be payable for the first 26 weeks of the disability. However, if your disability has lasted for more than 104 weeks, you will be entitled to receive $320 per week following the initial 104 week period.

    Caregiver Benefits – these benefits may be payable if you (the injured person) were living with a person in need of care (such as a young child or an elderly parent) prior to the accident and were not being paid for these services. You may be able to recover reasonable and necessary expenses up to a maximum of $250 per week for the first person in need of care and $50 per week for each additional person. You should note that when it comes to the income replacement, non-earner and caregiver benefits, only one of these three benefits can be paid at any given period of time.

    Medical and Rehabilitation Benefits – this benefit deals with reimbursement for reasonable and necessary expenses such as medical, surgical, dental, optometric, hospital, nursing, ambulance, audiometric, speech-language pathology, chiropractic, psychological, occupational therapy, physiotherapy, medication, prescription eyewear, dentures, hearing aids, wheelchairs, prostheses, orthotics, transportation to and from treatment sessions (excluding the first 50 kilometers of the trip in the injured person’s vehicle), workplace/home/vehicle modifications, life skills training, counseling, and vocational assessments.

    Subject to some exceptions set out in the pre-approved framework guidelines, you must submit a treatment plan to the insurance company prior to beginning treatment. If you do not submit a treatment plan, the insurance company could refuse to compensate you for treatment. The treatment plan must be prepared by a health professional and signed by one of the following – physician, psychologist, physiotherapist, dentist, or optometrist.

    You can receive a maximum reimbursement of $100,000 for “reasonable and necessary” expenses acquired in the period of 10 years following the accident. If you suffered “catastrophic impairment”, you may be entitled to receive up to $1,000,000 incurred over your lifetime.

    Attendant Care Benefits – this benefit may provide compensation for services of an aide or an attendant who is assisting you due to your injury. This could include services of a family member or other aide looking after you at home, or services provided by a long-term care facility including a nursing home, home for the aged or chronic care hospital.

    You may be entitled to a maximum of $3,000 per month for two years following the accident. If you suffered “catastrophic impairment”, you may receive up to $6,000 per month up to a maximum of $1,000,000 without a time limit. The insurer may ask you to provide it with a certificate from a health professional confirming that you require attendant care services.

    Funeral and Death Benefits – when a person dies due to a car accident, his or her estate may be entitled to reimbursement of funeral expenses to a maximum of $6,000.

    The deceased’s spouse, dependants and caregivers may also be entitled to death benefits. Death benefits are usually only payable if the deceased died within 180 days after the accident, or, if the deceased was continuously disabled as a result of the accident, within 156 weeks after the accident. No benefits will be payable to a person who dies before the deceased or within 30 days after the deceased.

    A spouse may receive $25,000 if the deceased was married. If the deceased was not married, but had dependants, the $25,000 would be divided equally among the dependants. On top of the $25,000, each of the dependants and former spouses of the deceased (to whom the deceased had an obligation to pay spousal support) will be entitled to $10,000.

    If the deceased was himself or herself a dependant at the time of the accident (ex. if the deceased was a minor child), $10,000 would be payable to the person upon whom the deceased was dependent (ex. parent or grandparent) or, if that person is dead, to that person’s surviving spouse or dependants.

    Visiting Expenses – if you sustained injury in a car accident, your family members and individuals who were living with you at the time of the accident may be entitled to reimbursement for all of their reasonable and necessary expenses incurred as a result of coming to visit you during your treatment or recovery. The visitors will only be reimbursed for expenses incurred within 104 weeks after your accident, unless your injury is catastrophic.

    Lost Education Expenses – if, due to your injuries, you are unable to continue in the education program in which you were enrolled at the time of the accident, you may be entitled to claim for your lost education expenses up to the maximum amount of $15,000. You may get reimbursed for expenses incurred before the accident including tuition, books, equipment or room and board.

    Housekeeping and Home Maintenance Expenses – you may receive compensation for reasonable and necessary housekeeping and home maintenance expenses, if your injury resulted in a substantial inability to do your housekeeping and home maintenance and you normally performed home maintenance services before your accident. Your housekeeping and home maintenance expenses may be paid for 104 weeks to a maximum of $100, unless the injury is catastrophic, in which case the time-limit does not apply.

    Psychological and Mental Injuries – your family members and dependants (whether related or not) may be entitled to receive benefits if they have suffered psychological injuries as a result of your accident.

    Cost of Examinations – you may be reimbursed for reasonable fees charged by health care providers in preparing disability certificates, reviewing and approving treatment plans, preparing applications for approval of assessments or examinations, preparing assessments of attendant care needs, and preparing applications for determinations of catastrophic impairment. You are normally required to obtain consent of the insurer before incurring examination expenses. However, there are certain exceptions. Your treatment providers may well be able to assist you in applying for these benefits

    Other Expenses – you may be entitled to be reimbursed for all reasonable expenses you incurred in repairing or replacing clothing, prescription eyewear, dentures, hearing aids, prostheses and other medical or dental devices that were lost or damaged as a result of the accident.

    3. How can I claim my benefits?

    Compensation will not be paid to you automatically following your accident. In order to receive benefits, you should notify your insurer within seven days of the date of the accident that you wish to submit an application. Late applications are made in many cases and you could discuss this with a lawyer. The insurer will then be required to send you the application forms as soon as possible. You will have to complete the forms and send them back to your insurer within 30 days. If you will not be able to meet the 30-day deadline because of the severity of your injuries, it is probably a good idea for you to advise your insurance company (but you may well wish to seek legal advice from a lawyer).

    4. Which insurance company will provide my statutory accident benefits?

    If you have car insurance or if you are a listed driver on someone else’s auto insurance policy, your own insurer will likely be responsible for providing you with benefits.

    If you do not have auto insurance, and you were injured in a car accident as a pedestrian or a cyclist, you may be able to apply to the insurance company that insured the car that hit you. If you were a passenger, you may well be able to apply to the company that insured the car in which you were riding.

    In some situations, no insured drivers are involved. In such cases, you may be able to claim compensation from a special government fund (the “Motor Vehicle Accident Claims Fund”) set up to handle these type of scenarios.

    It is important to remember that statutory accident benefits will generally only compensate you for losses that are not covered by some other private insurance policy or employment benefits plan. If these other policies or plans will cover only part of the losses incurred, the statutory accident benefits can be used to compensate you for the balance, subject to some limitations.

    5. What can I do if the insurance company denied my claim for benefits?

    If you are having problems recovering benefits to which you are entitled, you may be entitled to sue the insurer in court or try to enforce payment through arbitration. However, before you can proceed to court or to arbitration, you are required to mediate the dispute with the Financial Services Commission. It is extremely important to initiate mediation within two years from the date that the benefit was denied. An injury/car accident lawyer can provide further details with respect to this.

    For more information or a no obligation consultation contact us today.

  • Ontario Car Accidents-How do injured persons obtain compensation?

    I.  BACKGROUND Ontario’s car insurance system is difficult to understand. A lot of people think that the system is “no-fault”, meaning that you are not allowed to sue if you are injured in an accident. That is not entirely true.

    If you are injured in a car accident in Ontario, you are probably entitled to certain “no-fault benefits”, but you may also have the right to sue at-fault parties for your injuries. The right to sue is not unlimited in Ontario.

    II. ACCIDENT BENEFITS/NO-FAULT BENEFITS

    If you are injured in a car accident in Ontario you may well have the right to claim certain benefits from your own car insurance company. If you were struck by a car while you were a pedestrian, you are more than likely also entitled to claim benefits. If you were a passenger in a car you likely also have the right to claim benefits.

    The scheme providing entitlement to benefits is broad and most people have entitlement under one insurance policy or another. As a last resort, in certain circumstances, resort can be made to the government’s motor vehicle insurance fund.

    These benefits can include income replacement benefits, medical and rehabilitation benefits, housekeeping benefits, caregiver benefits, etc.

    If the insurance company refuses to pay you benefits that you are entitled to, then there are steps that you can take to dispute the insurance company’s decision. It is important to know that there are time-limits for doing this.

    It is also important to know that it is mandatory that you make an application for accident benefits before commencing a lawsuit.

    III. LAWSUITS

    The car accident regime has become complex and it is often a good idea to consult with a lawyer early in the process to ensure that you are receiving the benefits that you are entitled to, and that you are protecting your future rights and ability to commence a lawsuit if necessary.

    Questions may arise early in the process, such as what questions should you answer that the insurer asks you? Is the insurance company allowed to speak to your doctor? Is the insurance company allowed to demand your pre-accident medical records? Do you have to speak to the insurer or adjuster representing the other driver? A knowledgeable lawyer should be able to guide you through these issues and advise you about your entitlement to certain benefits.

    It may also be advisable for you to commence a lawsuit. Lawsuits are generally commenced to obtain compensation for things that are not covered by accident benefits (ie: pain and suffering, etc.). There are numerous disclosure obligations and requirements to start a lawsuit. There is also a time-limit for commencing a lawsuit and it is advisable to speak to a lawyer immediately if you are considering a lawsuit.

    IV.  RESTRICTIONS ON THE ABILITY TO SUE There are a number of restrictions on an injured person’s ability to sue for injuries and damages from an accident. One restriction is known as the “threshold”. The threshold is a legal test that an injured person has to meet in many cases to be able to claim for some types of losses, such as pain and suffering. If you do not meet the threshold, then, in many cases, you are not entitled to anything for pain and suffering. The threshold does not apply to everything (ie: income losses). To meet the threshold, the test is often, whether or not the injured person sustained a “permanent, serious impairment of an important physical, mental or psychological function”. These words are interpreted by statutes and case-law.

    Another restriction on an injured person’s right to sue, is the “deductible”. The deductible is an amount of money that, in many cases, is subtracted from whatever amount your pain and suffering is worth. Under bill 198, the deductible is (as of the date that this article was written) $30,000. So, that means that if your pain and suffering is valued at $50,000, then, if the deductible applied, the amount would be reduced by $30,000, leaving only $20,000. The deductible does not apply to pain and suffering that is assessed at more than $100,000 and there are a number of other exceptions. It is best to consult a lawyer about these issues.

    It is advisable to obtain a free consultation so that you understand your rights.

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